Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

The Committee notes the information contained in the Government’s report for the period 1 June 1997 to 31 May 1999, as well as the text of the draft amendment to Labour Act No. 1475 (1971). The Government states that consideration of the draft bill to amend the current legislation was postponed due to general elections, but will be resubmitted. Please forward a copy of the amended legislation once it is adopted.

Article 4 of the Convention.  The Committee notes the conclusions, approved by the ILO Governing Body at its 279th Session (November 2000), of the Committee set up to examine the representation alleging non-observance of the Convention made under article 24 of the ILO Constitution by the Confederation of Turkish Trade Unions (TÜRK-IŞ). In its conclusions, the Governing Body noted that Labour Act No. 1475 does not require an employer to give a valid reason, as defined in the Convention, for termination of permanent employment. Furthermore, sections 14(1) and 16 of the Maritime Labour Act (No. 854) and section 6 of the Journalists Labour Act (No. 5953) also do not require a valid reason for dismissal. The Governing Body considered that Article 4 appears not to be applied.

The draft amendment submitted by the Government states that an employer would have to provide a clear reason for dismissal. However, there is no requirement in the draft amendment that the reason be valid as defined in the Convention, i.e. that it be related to the capacity or conduct of the individual or related to the operational needs of the enterprise.

The Committee would appreciate receiving further information on the measures taken or envisaged to give full effect to this fundamental provision of the Convention. It draws the Government’s attention to the grounds contained in Article 5 that shall not constitute a valid reason for termination of employment, and urges the Government to consider including a similar list of prohibited grounds in the draft amendment.

The Committee notes that the draft amendment clarifies that the employer would have the burden of proof in an appeal, in accordance with Article 9. It draws the Government’s attention to other requirements under the Convention which flow from Article 4, in particular Article 10 concerning remedies to be awarded in case of unjustified dismissal. It requests further information on how these obligations under the Convention are applied in law and practice.

Article 6.  The Committee notes that section 17(1)(a) of Labour Act No. 1475 provides that a worker may be dismissed without notice "if the worker has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness and as a result is absent for three successive working days or for more than five working days in any month". The Committee considers that the broad wording of this section, involving as it does moral judgements, is highly susceptible to abuse of discretion by an employer. It requests further information on how section 17(1)(a) is applied in practice, including in particular what safeguards exist to prevent abuse of discretion.

Article 7.  Further to its previous comments TÜRK-IŞ has submitted an additional observation under article 23 of the Constitution. It again draws attention to the fact that the legislation in force does not ensure workers an opportunity to defend themselves before termination of employment. The Committee notes in particular that no cases of appeal against unjustified dismissal to the court have been cited in the Government’s report, and that the draft amendment does not address this issue. The Committee again asks the Government to provide information on what measures have been taken or are envisaged to give effect to this Article of the Convention.

Article 11.  TÜRK-IŞ states in its observations that this Article is not applied, as the exception of "serious misconduct" is defined too broadly in the national legislation. Section 17-II of Labour Act No. 1475 defines professional misconduct and improper behaviour to include, inter alia, "absence from work for two consecutive days or twice in one month on the working day following a rest day or on three working days in any month". The Committee notes that without the right to defend oneself before dismissal there is substantial room for abuse under this provision, reaffirming the need to apply Article 7 fully.

Article 12.  TÜRK-IŞ draws attention to the fact that section 14 of Labour Act No. 1475 requires a minimum of one year of service with the same employer and points out that section 20 of the Marine Labour Act and section 6 of the Journalists Labour Act contain almost the same length-of-service requirement. The Committee recalls that under Article 12 of the Convention a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to a severance allowance, unemployment benefit or assistance or a combination of both irrespective of the length of service, though the level of the benefit may depend on the length of service. The Committee notes that a social security reform package, which includes unemployment insurance, was approved by Parliament in August 1999. It requests further information on the scope of coverage of the unemployment insurance scheme. It hopes that the above point will be taken into account in the scheme.

Articles 13 and 14.  In reply to previous comments, the Government states that in cases involving ten or more workers, section 24 of Labour Act No. 1475 governs the procedure for redundancies. Section 24 provides the right to reinstatement on an individual basis during the six-month period following dismissal on grounds of redundancy. The Government adds that solutions other than dismissal are used to avoid large-scale dismissals. The Committee notes this information. It also notes that there is no requirement in section 24 of Labour Act No. 1475 to provide concerned workers’ representatives in good time with relevant information, as required by Article 13, paragraph 1(a). Nor is an employer required to give the workers’ representatives an opportunity for consultation on measures to be taken to avert or minimize the terminations or mitigate their effects, as required under Article 13, paragraph 1(b). Furthermore, there is no requirement that an employer give to the competent authority a written statement of the reasons for redundancy, number and category of workers affected, and the period over which the terminations are to be carried out, as required under Article 14, paragraph 1. The Committee requests information on the measures taken or envisaged to give full effect to Articles 13 and 14 of the Convention.

[The Government is asked to report in detail in 2001.]